South Africa's flawed asylum system

South Africa attracts the largest number of asylum seekers in the world, but grants refugee status to very few of them, ranking only thirty-sixth in the world for the size of its refugee population, which the UN Refugee Agency (UNHCR) puts at about 58,000.

The Department of Home Affairs, the government ministry tasked with managing the asylum system, approved just 15.5 percent of the applications it processed in 2011, less than half the global average recognition rate of 38 percent, according to UNHCR.

Researchers and activists have repeatedly pointed to serious flaws in the country’s refugee status determination process, including the lack of individualized assessments, misapplications of both local and international refugee law, and high levels of corruption among Home Affairs officials. The government’s routine response has been that its asylum system is simply overwhelmed by the sheer number of applications it receives.

In fact, although South Africa still receives the largest number of asylum applications in the world, the number of claims registered has dropped by more than half, from 222,000 in 2009 to 107,000 in 2011, possibly the result of the increased number of asylum seekers being turned away at the country’s borders and from its refugee reception offices in recent years.

Despite the reduced demand, a 2012 study by Roni Amit of the African Centre for Migration and Society (ACMS) at Witwatersrand University in Johannesburg, found that the problems with refugee status determination processes, identified in an ACMS study two years earlier, had not diminished.

Amit reviewed 240 refugee decisions issued in 2011 and found, among other things, that refugee status determination officers (RSDOs) had routinely failed to thoroughly investigate country of origin conditions and misapplied fundamental aspects of refugee law. South Africa’s 1998 Refugees Act established six grounds for persecution that qualify victims for refugee protection, but Amit found that RSDOs limited their definition of persecution to political grounds and only considered a history of persecution as evidence of future risk. A woman who fled Kenya to avoid forced circumcision, a Ugandan man who fled persecution for being a homosexual, and a man who was targeted by the police in his country for exposing mineral trafficking were all rejected.

Amit concluded that “South Africa’s asylum system exists only to refuse access to the country and makes no attempt to realize the goal of refugee protection… [but] functions solely as an instrument of immigration control”.

Bias, corruption

Although part of the problem appears to be insufficient training of RSDOs and an unmanageable workload that requires them to make at least 10 refugee decisions a day, Amit also described “a general anti-asylum seeker bias that excludes the majority of claims”.

“It’s this general idea you hear coming out of Home Affairs all the time that the majority of people are economic migrants and they’re abusing the asylum system,” Amit told IRIN. She added that refugee rights are not a popular cause in South Africa, where asylum seekers and refugees are just as much a target for xenophobic attitudes and violence as other foreign nationals, particularly if they live in impoverished areas where they are viewed as competing with locals for scarce jobs and resources.

The Department of Home Affairs did not respond to repeated attempts by IRIN to ask about its refugee status determination processes, but Amit’s findings are borne out by the experiences of several asylum seekers IRIN interviewed.

Caroline* fled South Kivu Province, in the Democratic Republic of Congo, after her husband was murdered by rebels and she was held captive in a rebel stronghold and repeatedly raped for a month. She was denied refugee status in 2010, after an interview at the refugee reception office in Pretoria that lasted just 30 minutes. When she told the interviewer about the conflict in South Kivu, he did not seem to believe her. “I wasn’t feeling well, I was shaking - that’s when he stopped the interview,” she told IRIN. “There were more things I was supposed to tell him, but he said, ‘As you can see, there are many people waiting.’

“My interpreter said, ‘Whatever your story, they’re not going to give you anything unless you pay money’, but I had nothing; I’d just arrived in the country.”

Gertrude Nkey, 51, also fled the conflict in Kivu, leaving behind her husband and six children after an attack that has left her traumatized. “I didn’t decide to leave Congo, I just ran and people helped me and I found myself here in South Africa,” she told IRIN.

It took four visits to the refugee reception office in Durban before she was finally admitted to the building, only to be sent away to find someone who could help her fill out the eligibility form in English. Finally, one of the interpreters employed by Home Affairs agreed to help her, but the interview was cut short when she started crying and her application was subsequently rejected. “I think because I didn’t have any money for them, they didn’t want to help me,” she said.

"The officers say, 'Give me money, and I'll give you refugee status'"

An interpreter who works at the refugee reception office in Pretoria - who asked not to be named - said these stories were typical. “The officers say, ‘Give me money, and I’ll give you refugee status,’” she told IRIN. “They’ll say they’ve lost a file, but if a bribe is found, they find the file.”

Several local refugee rights organizations have documented corruption at refugee reception offices. Eleven volunteers with People Against Suffering, Oppression and Poverty (PASSOP), who monitored the refugee reception office in Cape Town over a two-week period in 2011 all reported witnessing corrupt practices, including the payment of bribes to security guards to cut queues and the sale of fake documents by men working outside the office who appeared to have connections with officials inside.

The interpreter said a small minority of RSDOs “do their job properly”, and that, in the absence of a bribe, the outcome of an application depended mainly on the mood of the interviewer and which country the applicant was from. “If there’s no war in that country, they will reject the application no matter what the individual says.”

Backlog

David Cote of Lawyers for Human Rights, which provides legal services to asylum seekers in Johannesburg and Pretoria, confirmed that claimants are often pre-judged based on their country of origin. “You can tell from the decisions that a lot of it is ‘cut and paste’ and based on outdated country-of-origin information,” he told IRIN.

According to UNHCR’s deputy regional representative, Sergio Calle-Norena, RSDOs have access to REFWORLD, a UNHCR website with all the latest country-of-origin information. “If they don’t make use of that information, it could be lack of interest or lack of time,” he commented. “They have to process 10 interviews a day; you can’t get into detail in that time.”

An initial decision can be appealed but the backlog of cases and the limited capacity of the Refugee Appeal Board, which consists of four members, means that asylum seekers often wait up to five years for an appeal hearing. Tjerk Damstra, former acting chair of the board said that, at the time his term ended in 2012, only about 10 percent of decisions were reversed.

Although some asylum seekers have legal representation at the appeals stage, Cote said that RSDOs rarely allow any kind of representation during the initial status determination interview. Applicants who have recently arrived in the country are required to fill out an eligibility form in English, usually before receiving any information about the asylum process. According to Amit’s report, failure to include relevant details in one’s story on this form is often viewed as grounds for questioning the claimant’s credibility and rejecting their application.

The interpreter who spoke to IRIN said she often helped people fill out their eligibility forms but that there was a shortage of interpreters for some nationalities, particularly Somalis.

Calle-Norena says UNHCR has been engaging with the government about structural, operational and capacity problems in South Africa’s refugee status determination process, which emerged in an analysis the agency did last year. “In general, these problems were acknowledged by the government, but a discussion of corrective actions has yet to take place,” he told IRIN.

UNHCR has also offered technical advice and training for RSDOs, which the government has yet to accept. The agency limits its involvement in individual asylum cases to those facing critical protection risks or imminent deportation to a place where their life or freedom would be at risk. “We can only do [mandate determinations] in those cases,” said Calle-Norena, explaining that, as a signatory to the 1951 Refugee Convention, the South African government holds the primary responsibility for implementation while UNHCR can only provide a supervisory role.